The First Amendment in Camouflage: Rethinking Why We Criminalize Military Speech
61 Pages Posted: 21 Apr 2018
Date Written: February 20, 2018
An American can tweet “the president is a fucking idiot” and not go to jail. Yet if a U.S. soldier does the same, they are committing a federal crime. This example is only the tip of the iceberg representing a large swathe of otherwise constitutionally-protected speech that is criminalized only for those in uniform. Like the captain of the Titanic, none of the three branches of federal government have bothered to carefully chart the dangers of such drastic speech suppression. Nor have they provided sufficient lifeboats for those on board in the form of substantive limitations regarding the types of speech that can send a service-member to jail. This Article explores why this situation exists, and recommends a safer course.
To do this, this Article analyzes how the federal military speech crimes deviate from civilian criminal law, highlighting the former’s deficiencies while laying out a clear path of straight-forward statutory reform. This analysis is supported by a critical examination of the military courts’ messy speech jurisprudence, with the Supreme Court’s seminal incitement law’s doctrinal development as the backdrop. This Article paints this larger landscape to demonstrate that the military speech doctrine, an expanded “dangerous speech” approach to what is unprotected speech, took an early off-ramp from the Court’s more protective speech law development. Linked to the worst excesses of the Espionage and Sedition Acts of 1917 and 1918, the current military speech doctrine fails to require clear causation of harm, thus allowing persecution of disliked ideas.
This Article recommends replacing the military speech doctrine with approaches that far better align with the modern Court’s speech jurisprudence. While the most expansive speech crimes should be subject to strict scrutiny, this Article concludes that a discrete list of military speech crimes remain unprotected by the First Amendment due to their nature as speech integral to crime, an unprotected category long recognized by the Court. Finally, this Article cautions that retaining the military’s unique service-discrediting crime risks skewing the role of the U.S. military within our greater democracy.
Keywords: First Amendment, national security law, constitutional law, military law, criminal law, speech crimes
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